After the State Legislature's failure to reauthorize key portions of the state Superfund program, the California Environmental Protection Agency ("Cal/EPA" or the "Agency") issued emergency regulations on November 9, 1998 that purport to provide the Department of Toxic Substance Control ("DTSC") with continuing jurisdiction over hazardous waste sites located throughout the state.
State Superfund's Sunset Provision
The state Superfund law, also known as the Hazardous Substance Account Act, Chapter 6.8 of California's Health and Safety Code, contains a sunset provision which requires that certain articles of the Act be reauthorized by January 1, 1999. On August 31, 1998, the State Legislature adjourned without reauthorizing those articles. In the absence of reauthorization, DTSC will lose much of its existing statutory authority to investigate and remediate hazardous waste sites. The articles that will sunset govern private site management, technology demonstration projects, compensation for losses, abandoned site surveys, and most importantly, the enforcement and mandate provisions of Article 5. The only provisions of the Act that will remain in effect are the definitions and cost recovery authorities embodied in Chapter 6.8 for the sole purpose of repaying the Bond.
Emergency Regulations
The emergency regulations seek to preserve DTSC's authority to manage and enforce cleanup of sites previously covered under the Superfund program. Cal/EPA relies primarily upon the Hazardous Waste Control Law -- Chapter 6.5 -- as well as other provisions of the Health and Safety Code as the purported statutory basis for the regulations. Cited statutory provisions include Health and Safety Code section 25187, which allows DTSC to require responsible parties to take corrective action when there has been a release of a hazardous waste or a hazardous constituent from a "hazardous waste facility," and sections 58009 and 58010, which authorize DTSC to commence and maintain all proper and necessary actions to protect and preserve the environment and to abate public nuisances. The Agency also will rely upon the citizen suit provisions of the federal Resource Conservation and Recovery Act, 42 U.S.C. § 6972, and the cost recovery provisions of the federal Superfund, to provide it with the tools to seek injunctive relief and recovery of its response costs.
In creating a framework for DTSC to administer its programs, the emergency regulations create a risk-based corrective action program that takes into account "conditions at the site, the current and reasonably anticipated future land uses of the site and impacts and threatened impacts to waters of the state." Consistency of the corrective action with the National Contingency Plan under the federal Superfund program will not be required except at the request of the responsible party or upon the administering agency's determination that such consistency is necessary to recover response costs from responsible parties. Responsible parties must maintain a financial assurance mechanism (e.g., surety) if implementation of the selected remedy is scheduled to take more than one year; or completion of the remedy is scheduled to take more than five years; or if long-term maintenance or monitoring is required. Upon completion of cleanup under the program, a certification of completion will be awarded that provides that no additional work need be done absent special circumstances.
While the emergency regulations were primarily intended as an interim measure to keep the state Superfund program operating, their impact will be felt by not only inactive sites but also active hazardous waste treatment, storage, or disposal facilities currently subject to the federal Resource Conservation and Recovery Act. For example, the regulations permit the use of screening levels for soil contamination at both active and inactive sites.
The emergency regulations will be applied only prospectively. As a result, sites that are operating under previously issued cleanup orders or agreements, including those participating in the voluntary cleanup program, will be exempt from the new regulations and will thus be subject to the terms of the existing orders/agreements. However, given the fact that much of the statutory basis for the authorities cited in those documents will sunset on January 1, 1999, DTSC plans to amend all existing orders and agreements to clarify the jurisdictional basis for its continuing authority. It is not clear what authority DTSC will rely on. Small releases involving 60 cubic yards or less of released material that do not pose any threat to groundwater are also exempt from the regulations.
The emergency regulations do not address the issues of proportional liability or orphan share cleanups, which are matters that the State Legislature will need to address in the upcoming session.
When The Emergency Regulations Take Effect
The emergency regulations were filed by Cal/EPA on November 9, 1998 and became effective on November 19, 1998 upon approval of the state Office of Administrative Law. They will remain in effect for 120 days -- until late March 1999. Cal/EPA's stated position is that this time will allow incoming Governor Gray Davis and the State Legislature to implement a more lasting solution to the crisis. The Davis administration will have the option of retaining, modifying, or repealing the emergency regulations, but it is still unclear what steps will be taken. Emergency legislation will require a two-thirds vote in the Legislature; otherwise, a reauthorized law cannot take effect until January 1, 2000.
In the meantime, given that Chapter 6.5 was intended to regulate active hazardous waste treatment, storage, and disposal operations rather than abandoned sites, there is uncertainty over whether the emergency regulations are sufficient to continue all of the aspects of the state Superfund law, and whether it broadens DTSC jurisdiction over enforcement of the state Superfund program. These regulations represent a stop-gap measure intended to prevent the state Superfund program from breaking down while a long-term solution is being sought, and only coming months will provide answers as to the ultimate fate and direction of the state Superfund program. While DTSC has asserted that it will continue to exercise the same authority and apply the same standard over state Superfund sites, regulated parties who are subject to DTSC's exercise of its emergency regulations should carefully analyze the new emergency regulations to determine their specific application to the facts of each individual site. In addition, all stakeholders should consider how to participate in the legislative reauthorization of the state Superfund, which may present a unique opportunity to shape the course of future site response and cleanup actions.
This briefing is provided to alert you to significant current issues in environmental and land use law. Because of the generality of this discussion, readers are cautioned to seek specific legal advice based on detailed analyses of particular facts and situations before acting upon information presented herein.